No Naked Facts!

Reader A. Wright Burke has a nifty turn of phrase. Who can forget his nitcaps™. (“Initial capitals,” guys!)

He recently came up with “naked facts.” Nice phrase. But I suggest that the concept it stands for doesn’t work. It’s instructive to consider why that’s the case.

A naked fact is a statement of fact that isn’t preceded by a reference to (1) the one or more parties making the statement of fact and (2) a verb, namely states or acknowledges, the two MSCD-sanctioned verbs to use for language of declaration. (If you’re wondering about states, read this article.)

Naked facts won’t work because you have to know who is making each statement of fact. But AWB says in this comment that that doesn’t apply when both parties are making a statement of fact:

More generally, it seems to me that by virtue of a lead-in, naked statements of fact in the body *function* as joint statements of fact, much as in recitals. This would cover the words “Acme has paid the purchase price to Widgetco”: its a joint statement of past fact. If you don’t like the invocation of the lead-in, then let them be joint statements of fact by virtue of their context in a signed agreement of the parties. If the parties aren’t stating these facts, who is?

I don’t agree. If both parties are making a statement of fact, it’s because they’re both acknowledging something, usually some external fact (The parties acknowledge that on 19 November 2015 the price of unobtanium exceeded $13,665 per troy ounce). I don’t see that knowing who is making such a statement of fact is any less relevant because both parties are making the statement. And if you don’t make it explicit, I don’t see that there’s any basis for assuming that both parties are making the statement.

But it’s an interesting idea, so I’m grateful to AWB for airing it. And I’m always prepared to be mistaken.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.